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Vermillion Reports is a news site about Vermillion County, Indiana. Our first article is about Wabash Valley Resource’s carbon sequestration project. We plan to publish articles on other topics. If you would like email notices about new articles, please send your email address to us at vermillionreports@gmail.com
Analysis and Viewpoint: The public was short-changed in the EPA public hearing and comment period on Wabash Carbon Services’ CO2 permits
By Larry Gavin
June 24, 2025
An Overview
On Jan.19, 2024, Region 5 of the U.S. Environmental Protection Agency issued permits that allow Wabash Carbon Services, LLC (WCS), a subsidiary of Wabash Valley Resources, to construct and operate two carbon dioxide injection wells, one in Vermillion County and another in Vigo County, Indiana. The permits allow WCS to inject 1.67 million tons of liquified carbon dioxide into the ground each year for 12 years, a total of 20 million tons. The carbon dioxide will be permanently stored in rock formations about 5,000 feet below ground.
WCS projects that the carbon dioxide will migrate underground horizontally in about a two-mile radius from each well’s bottom point. The carbon dioxide will also migrate vertically. This migration area is referred to as the “pore area.” The extent of the carbon dioxide migration is the “plume.” A map showing the projected migration that was attached to the notice of hearing and fact sheet in August 2023 is reprinted below.
One important question is what happens after all this carbon dioxide is pumped into and stored underground. Carbon dioxide is a weak acid; and it is anticipated that it will react with surrounding rock formations.
The permits require WCS to take certain steps to monitor what’s happening in the pore areas during the 12-year injection period, and they also require WCS to monitor what’s happening in the pore areas for 10 years after the injections cease.
One issue, though, is why the post injection monitoring period is limited to 10 years. EPA regulations provide that the owner/operator shall continue to conduct monitoring “for at least 50 years or for the duration of the alternative timeframe approved by the Director.” 40 C.F.R. Sec. 146.93(b).
Four farmers challenged the permits in an appeal to a three-judge EPA Appeals Board. The oral argument in that appeal focused on why EPA Region 5 reduced the default 50-year post-monitoring period to 10 years. In a 22- page decision rendered on March 3, 2025, the Appeals Board noted that while a fact sheet and the Draft Permits referred to a 10-year post-injection monitoring period, the documents did not state that the 10-year period was an alternative to a 50-year default period.
In addition, the Appeals Board also concluded that Region 5 failed to state the basis for its decision to use the 10-year period and failed to identify the crucial facts supporting that decision in the context of ten elements and seven other criteria that had to be considered and documented. So, the Appeals Board remanded the case and ordered EPA Region 5 to provide the required information. (Decision, pp.145-46).
The findings of the Appeals Board indicate that at the time of the public hearing and comment period in August 2023, members of the public were deprived of crucial information that was essential for them to challenge the decision of Region 5 to use a 10-year post-injection monitoring period in an informed and effective way.
On May 15, 2025, Region 5 prepared a 37-page memorandum providing the information ordered by the Appeals Board. But the Region decided not to provide a new public hearing or comment period. As a result, the public will not be able to challenge the Region’s analysis and findings made in the May 15, 2025 memo and will not be able to challenge the 10-year post-injection monitoring period with the benefit of the new information contained in that memo.
Members of the public were previously deprived of a meaningful opportunity to be heard in the August 2023 public hearing and comment period, and they have been blocked from providing any arguments, evidence or comments in the remand proceedings.
The public has been short-changed two times.
This essay 1) summarizes the elements and criteria that must be considered and documented to shorten the 50-year post-injection monitoring period; 2) argues, using findings made by the EPA Appeals Board, that the public was deprived of crucial information at the time of the public hearing and comment period in August 2023 in three distinct ways; and 3) argues that, despite new findings and information provided in the EPA’s Timeframe Summary Memo, the public was deprived of a public hearing and comment period in the remand proceedings.
1. The elements and criteria to shorten the post-injection monitoring period
EPA regulations provide that the owner/operator of a carbon sequestration project must continue to conduct monitoring of the pore area “for at least 50 years or for the duration of the alternative timeframe approved by the Director pursuant to requirements in paragraph (c) of this section.” 40 C.F.R. Sec.146.93(b)(1). According to the EPA Appeals Board, “the 50-year default timeframe was based on a ‘review of research studies, industry reports, and existing environmental programs.’” (Decision, p.130)
So, the 50-year period is research-based.
Paragraph (c) of Section 146.93 provides that the Director of a region may reduce the post-injection monitoring timeframe if the owner/operator demonstrates through substantial evidence that the geologic sequestration project will no longer pose a risk of endangerment to USDWs at the end of the shortened timeframe.
But a “demonstration of an alternative post-injection site care timeframe must include consideration and documentation of” ten elements (and potentially an eleventh). They are:
(i) The results of computational modeling performed pursuant to delineation of the area of review under Sec. 146.84:
(ii) The predicted timeframe for pressure decline within the injection zone, and any other zones, such that formation fluids may not be forced into any USDWs; and/or the timeframe for pressure decline to pre-injection pressures;
(iii) The predicted rate of carbon dioxide plume migration within the injection zone, and the predicted timeframe for the cessation of migration;
(iv) A description of the site-specific processes that will result in carbon dioxide trapping including immobilization by capillary trapping, dissolution, and mineralization at the site;
(v) The predicted rate of carbon dioxide trapping in the immobile capillary phase, dissolved phase, and/or mineral phase;
(vi) The results of laboratory analyses, research studies, and/or field or site-specific studies to verify the information required in paragraphs (iv) and (v) of this section;
(vii) A characterization of the confining zone(s) including a demonstration that it is free of transmissive faults, fractures, and micro-fractures and of appropriate thickness, permeability, and integrity to impede fluid (e.g., carbon dioxide, formation fluids) movement;
(viii) The presence of potential conduits for fluid movement including planned injection wells and project monitoring wells associated with the proposed geologic sequestration project or any other projects in proximity to the predicted/modeled, final extent of the carbon dioxide plume and area of elevated pressure;
(ix) A description of the well construction and an assessment of the quality of plugs of all abandoned wells within the area of review;
(x) The distance between the injection zone and the nearest USDWs above and/or below the injection zone; and
(xi) Any additional site-specific factors required by the Director.
These elements recognize that the carbon dioxide injected underground will react with the rock formations, and three of the elements require projections of what will happen in the future.
The regulations also provide that the information submitted to support demonstration of these ten elements must meet seven specific criteria to ensure they meet scientific standards. 40 C.F.R. Sec. 146.93(c)(2). Region 5 says, “These criteria help ensure the accuracy of the data and information underlying the ten elements and thus that EPA can rely upon the information provided for the ten elements.” (Timeframe Review Memo, p. 9).
2. The public was deprived of crucial information at the time of the public hearing and comment period in August 2023
Under EPA’s regulations, before a region may issue a permit, the region must publish a draft permit and a fact sheet. The draft permit reflects the Director’s “tentative” decision” to grant a permit, and it must include all conditions, compliance schedules, monitoring requirements, and other required information. 40 C.F.R. Sec. 124.6 (b) and (d).
The fact sheet “shall briefly set forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit.” Sec. 124.8. The fact sheet must also provide: “(5) Reasons why requested variances or alternatives to required standards do or do not appear justified.” Sec.124.8(5).
The region is also required to provide a public hearing and comment period on the draft permits. The hearing and comment period gives members of the public the opportunity to provide input on any provision in the draft permits, and to present arguments and evidence in support of their position. The purpose of the fact sheet is to provide the public with information about the project and the draft permit.
On July 7, 2023, EPA Region 5 published two draft Class VI permits to WCS to inject carbon dioxide into the ground through wells in Vermillion County and Vigo County. Each draft permit was more than 100 pages. On the same day, the EPA published a fact sheet and also gave notice that it would hold a public hearing in Terre Haute on Aug. 10, 2023, and the notice said the Region would accept written comments until Aug. 11.
The public hearing was held on Aug. 10. After the public hearing, the EPA extended the time it would accept written comments until Aug. 21. On Aug. 21, the Vigo County Commissioners asked for a 30-day extension for public comment. The EPA denied that request.
Thus, members of the public were given only 33 days to review lengthy, highly technical draft permits (not to mention the rest of the administrative record which was available for review in Chicago) and to then present oral comments on Aug. 10; and they were given only 43 days to prepare and submit written comments.
a. The fact sheet did not provide required information
The fact sheet stated that the post injection period for monitoring would be 10 years. But the fact sheet was arguably deficient in at least two ways. First, it did not inform the public that the default post-injection monitoring period provided in the EPA’s regulations was 50 years, rather than 10 years. Second, the Fact Sheet did not provide the reasons that justified a reduction of the 50-year period to 10 years.
During the oral arguments on the appeal of the final permits held in October 2024, one of the three judges on the EPA Appeals Board asked the attorney for the EPA whether the fact sheet prepared by the Region complied with 40 C.F.R. Sec.124.8(b)(5). That section required the Region to prepare a fact sheet for the draft permits and to include in the fact sheet: “Reasons why any requested variances or alternatives to required standards do or do not appear justified.”
The EPA’s lawyer responded, saying the required standard was not the 50-year period but was a 50-year period as might be reduced by the Director of the Region. So, she argued, the requirements of Section 124.8(b)(5) did not apply. But another interpretation is that the required standard is “at least 50 years,” and the “alternative” to that standard in the permits is 10 years.
Since 40 C.F.R. Sec.124.8(b)(5) refers to “variances or alternatives to required standards,” and since 40 C.F.R. Sec. 146.93 refers to any time period less than 50 years as an “alternative timeframe” in at least six subsections, it would seem that the ten-year period was an “alternative” to the 50-year period, and the fact sheet should have included, “Reasons why any requested variances or alternatives to required standards do or do not appear justified.”
Significantly, the Appeals Board found in its decision, “In the matter before us, the basis for the Region’s decision to approve a 10-year alternative PISC [post-inspection site care plan] timeframe is not found in the draft permits or the fact sheet. When the Region issued the draft permits, the permits required post-injection monitoring for 10 years, but did not identify that requirement as an alternative to the 50-year default PISC timeframe in the regulations. See Draft Permits at Attach. E; Fact Sheet at 1-2, 4. Neither the draft permits nor the fact sheet provides any basis for the Region’s approval of an alternative timeframe given the requirements for approval in 40 C.F.R. § 146.93(c.)” (Decision, p.138)
Because this issue was not raised or briefed on appeal, the Appeals Board declined to decide whether or not 40 CFR 124.8(b)(5) required the Region to provide more information in the fact sheet than the Region had provided. The Appeals Board said, though, “The Board observes, however, that stating in the fact sheet that the permitting authority is approving an alternative PISC timeframe, rather than the 50-year default timeframe, and providing the permitting authority’s basis for that decision may be a more efficient and transparent practice, irrespective of whether it is required by 40 C.F.R. § 124.8(b)(5).” (Decision, p. 138, Note 8)
Arguably, EPA Region 5 violated a regulation that required it to disclose 1) that there was a default 50-year period, and 2) the reasons that justified adopting an alternative 10-year period. At the very least, the EPA Appeals Board viewed EPA Region 5’s failure to make the disclosures as a lack of transparency. Either way, the failure impacted the public’s opportunity to challenge in a meaningful and effective way the Region’s decision to reduce the default 50-year time period to 10 years.
b. The fact sheet may have caused confusion
The fact sheet says, “Wabash Carbon Services would continue this post-injection monitoring for at least 10-years, and until it demonstrates USDW non-endangerment, based on monitoring and other site data. At the end of the 10-year period, if site data support it, the EPA may authorize Wabash to close the site.”
Assuming that some members of the public were aware of the 50-year default period, this statement may have led them to believe that the EPA’s ability to extend the 10-year period in the future was a factor justifying the reduction of the 50-year default to 10 years. This would be a reasonable assumption. In its Response to Comments published on January 24, 2024, Region 5 argued that the ability to extend the 10-year period in the future was a factor in its decision to reduce the period to 10-years.
But the ability to extend the 10-year period in the future is not a valid reason to reduce the 50-year period to 10 years in the permit. The Appeals Board said, “this is not a relevant consideration under 40 C.F.R. Sec.146.93(c). The Class VI regulations establish a well-defined process for considering and approving an alternative PISC timeframe that is shorter than the default timeframe of 50 years during the permitting process. The opportunity to revise the permit in the future is no substitute for the Region’s obligation to follow the permitting regulations during the permitting process.” (Decision, p. 139, ftnt. 10)
Some members of the public may have been confused or misled about whether the ability to lengthen the time period in the future was an appropriate factor, and led to believe that the change to 10 years was justified on this ground. This further impacted the public’s ability to challenge the permits in an informed, effective manner.
c. The record as a whole did not contain required findings and analyses
The EPA Appeals Board found in its March 3, 2025, decision that the fact sheet, the draft permits, the final permits and the administrative record as a whole do not contain Region 5’s reasons, analysis or determinations of crucial facts to support reducing the 50-year default period to 10 years.
The Appeals Board said, “The Board has been unable to find, and Wabash and the Region have been unable to point to where in the administrative record the Region analyzes or considers the alternative 10-year PISC period in the context of all the regulatory requirements for approval of an alternative timeframe under 40 C.F.R. § 146.93(c).” (Decision p. 141. See also the lengthy discussion at pages 137-144).
Consequently, the EPA Appeals Board determined that a remand was necessary. Its decision says, “Without an articulation of the Region’s analysis, based on the required demonstration using the factors to be documented and considered, the Board cannot properly perform any review of the Region’s analysis, and therefore cannot determine whether the Region has exercised considered judgment in reaching its conclusion.
“The necessity of the Region providing its consideration and rationale in the record of decision is of paramount importance to transparent, efficient, and sound decision making. Because the record does not reflect the Region’s considered judgment in approving the alternative 10-year PISC timeframe in the permit decisions at issue, we remand these permits to the Region.
“On remand, the Region must explain the basis for its conclusion that an alternative 10-year PISC timeframe is appropriate and ensures non-endangerment of USDWs, addressing the requirements of 40 C.F.R. § 146.93(c) including the crucial facts on which it is relying in support of that conclusion. The relevant facts and information supporting the Region’s decision to approve a 10-year alternative PISC timeframe may very well be in the record, what is lacking is the Region’s analysis in the record of how the alternative PISC timeframe is consistent with the regulations and the Region’s identification of the crucial facts on which it relied.” (Decision, pp.145-146).
The EPA Appeal Board’s decision indicates that the public lacked crucial information concerning Region 5’s decision to use a 10-year post injection period at the time the public hearing was held in August 2023. The public was not told that the Region decided to use an alternative 10-year post-injection period rather than the default 50-year period. The public was not provided the reasons why an alternative 10-year period was justified. The public was not informed of the Region’s analysis and findings made with respect to the ten elements the Region was required to consider and document before approving an alternative 10-year period.
Absent this information, the public, in the August 2023 public hearing, could not have challenged the Region’s decision to approve an alternative 10-year period in an informed and effective manner.
The detriment to the public is shown by the Appeals Board’s determination that it could not properly perform any meaningful review of the Region’s decision without an articulation of the Region’s analysis of the 10 factors, including the crucial facts on which the Region relied in support of its analysis.
If the Appeals Board lacked sufficient information to make a meaningful review of the Region’s decision, how could the public be expected to make an informed and meaningful challenge to the Region’s tentative decision to use a 10-year post-injection monitoring period?
The public was deprived of an opportunity to provide an informed and effective challenge to the Region’s decision to use a 10-year post-injection monitoring timeframe in the public hearing and written comment period in August 2023.
3. The public was deprived of a public hearing and comment period in the remand proceedings
In response to a request for information, the U.S. EPA responded by on June 20, “EPA has completed review of the Wabash Class VI permits, the approval determination documents are attached to this email.”
One of the attached documents is a 37-page memorandum dated May 15, 2025, which contains the analysis that the EPA Appeals Board ordered Region 5 to make in its March 3, 2025, Decision.
The second document is an undated, unsigned two-page document titled “Determination on Remand.” The Determination memo states that Region 5 decided to place the Timeframe Review Memo and the Determination memo in the administrative record, and that the Region decided not to provide a public hearing or written comment period. The Determination memo explains the basis for this decision as follows:
“Since the only documents added to the administrative record were for the purpose of better explaining the Region’s decision as opposed to adding documents identifying or providing any new information, no new issues or substantial questions were raised on remand. Because of this, Region 5 is reissuing the final permits with no changes from the 2024 permits. With this decision, Region 5 is only updating the administrative record with the following documents: this Determination, the Alternative PISC Timeframe Memorandum, and the revised permits (revision of issuance and effective dates only). In addition, for these same reasons, Region 5 has decided not to exercise its discretion to reopen the Permits for additional public notice and comment. See 40 C.F.R. Sec. 124.14 (b).”
While Region 5 asserts that the Timeframe Review Memo does not identify or provide “any new information,” that assertion ignores that the Appeals Board’s March 3 decision raised substantial new questions and issues about the permits. The Appeals Board determined that the record as a whole failed to include crucial information, specifically the Region’s basis for adopting a 10-year post-injection monitoring period; the Region’s findings and analysis of 10 elements and 7 criteria that it was required to consider and document; and an identification of the crucial facts relied on by the Region in support of its decision.
The Timeframe Review Memo contains substantial new evidence and new information that the Appeals Board found was lacking. The memo contains findings on the 10 elements and the 7 criteria that Region 5 was required to consider and document before approving a 10-year post-injection monitoring period. The Timeframe Review Memo summarizes some of the new findings as follows:
“To summarize from the elements above, some of the most important ways in which the site-specific data and information in the demonstration supports a 10-year alternative PISC timeframe and addressed risk to USDWs are as follows: the computational modeling (Element #1) demonstrated that the CO2 plume (Element #2) migration will cease by year 22 and that the pressure front (Element #3) will dissipate by year 17. The modeling relies on valid studies to verify trapping information and shows that the site-specific processes that will occur in the injection zone will result in appropriate trapping of the injected CO2 to ensure uniform capture, storage, and movement of the CO2. The predicted rates of the various trapping phases indicate the rates for all three trapping phases approach zero from year 22 onward and demonstrate that the CO2 will be permanently stored within the injection zone. (Elements #4-#6). There is significant separation (over 1,600 feet) between the top of the injection zone (Oneota Formation) and the bottom of the lowest/nearest USDW (Sexton Creek Formation) (Element #10), including the (Maquoketa Group) confining layer located in between, which is of appropriate thickness, permeability, and integrity to prevent vertical migration of the CO2 plume at year 10 post-injection and beyond (Element #7) and is free of fractures and faults (Element #7) that could provide a pathway for fluid movement into a USDW (Element #8). No abandoned wells penetrating the confining zone were identified in the AoR (Element #9). The construction of the injection wells (WVCCS #1 and WVCCS #2) will ensure CO2 injection occurs only at depth within the Oneota and Potosi Formations that comprise the injection zone (Element #9). The plugging plans will ensure that the wells associated with the project do not become potential conduits for fluid movement post-injection (Element #8). In totality, information and data related to all the elements demonstrate that the Wabash project will not pose a risk of endangerment to USDWs after the 10-year PISC timeframe.” (Timeframe Review Memo, p. 37)
The Region’s findings on these elements constitute new evidence and new information that was not previously available.
In addition, the Timeframe Review Memo identifies the data the Region is relying on in support of its findings, and it provides more than 50 citations to the administrative record, citing the document number and page number, where the data relied on is located. Much of the data was submitted by WCR. The Timeframe Review Memo provides the Region’s analysis and conclusions about the data WCR provided, and which the Region relied on.
All of this constitutes important new evidence and new information. At the August 2023 public hearing and comment period, members of the public did not have the benefit of any of this new evidence and information.
Now after Region 5 has provided the information that the Appeals Board determined was necessary and crucial, the Region has decided not to provide an opportunity for the public to comment at a public hearing or to submit written comments. It has effectively blocked members of the public from challenging its findings, its analyses, its projections, its decision to use a 10-year post-injection monitoring period.
The public was short-changed a second time.
There is another issue that Region 5 has not addressed in its Timeframe Review Memo. EPA’s regulations provide, that “[a]t the Director’s discretion, the Director may approve” a post-injection monitoring time frame shorter than 50 years. But this is discretionary, even if all the requirements specified in the regulation are considered and documented. 40 C.F.R. Sec. 146.93(c).
So, even assuming that all the requirements were met, why did Region 5 decide to shorten the timeframe to 10 years in the permits now, based on projections about what will happen 22 years from now, and argue the decision is justified, in part, because the Region could increase the time period in the future if necessary? (See Timeframe Review Memo, pages 3 and 11).
An alternative would be to use the 50-year default period in the permits now, and, if appropriate, to reduce that timeframe in the future. 40 C.F.R. Sec. 146.93(b)(2).
WCS may benefit in several ways if the timeframe is reduced now.
But how does the public benefit from shortening the period now, based on projections, rather than shortening it in the future based on actual data?
Region 5 has not explained why it chose the path it did.
…………………………………………….
References:
Fact sheet and notice of public hearing and comment period dated July 2023: https://www.epa.gov/system/files/documents/2023-07/Wabash_Carbon_Services_FactSheet_Draft_Permit.pdf
Draft permit for Vermillion County dated July 2023:
https://www.epa.gov/system/files/documents/2023-07/IN-165-6A-0001_Wabash_Draft_Permit.pdf
EPA Response to Comments published January 19, 2024: https://www.epa.gov/system/files/documents/2024-01/wabash-rtc-final.pdf
Final permit issued for injection wells in Vermillion County, dated January 19, 2024: https://www.epa.gov/system/files/documents/2024-01/in-165-6a-0001_wabash_final_permit.pdf
Decision of the EPA Board of Appeals, dated March 3, 2025: https://yosemite.epa.gov/oa/eab_web_docket.nsf/9a0c1c4939bdf18b852584be006bffec/e65f020c747473d085258c540050b693/$FILE/Wabash%20Order%20Remanding%20in%20Part%20and%20Denying%20in%20Part,%20EAD%20FINAL%202025.3.21.pdf
EPA Repository of permit documents for WCS permits: